Band writes that the opinion in the matter includes some editorializing about the purpose of copyright that, since it comes down in a Supreme Court decision, could serve as a none-too-subtle nudge to Congress, not to mention an important precedent in future cases. Copyright law’s purpose is “enriching the general public through access to creative works”—and, crucially, it does that by balancing two distinct aims: “encouraging and rewarding authors’ creations while enabling others to build on that work.” (Emphasis mine.)

Band notes that this isn’t the first time SCOTUS has pointed out the importance of creators being able to build on the work of others, but it is the first time it talked about building “on that work” rather than on “the ideas and information conveyed by a work.” In other words, the ability to make fair use of the work itself by reselling it in another market.

It’s interesting to consider all the attention copyright has been getting lately, between this matter and Hillary Clinton’s copyright-reform-related talking points. I wonder whether Disney will have quite so easy a time of things when it comes time for it to try to extend the length of copyright terms again?

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Published by Chris Meadows

TeleRead Editor and Senior Writer Chris Meadows has been writing for TeleRead--except for a brief interruption--since 2006. Son of two librarians, he has worked on a third-party help line for Best Buy and holds degrees in computer science and communications. He clearly personifies TeleRead's motto: "For geeks who love books--and book-lovers who love gadgets." Chris lives in Indianapolis and is active in the gamer community.
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One thought on “The Kirtsaeng legal fees decision also speaks to the purpose of copyright”

Quote: “In other words, the ability to make fair use of the work itself by reselling it in another market.”

Fair use isn’t making a business of buying medical books in poorer countries where it’s sold for little more than the cost of printing and selling it at a nice profit in a much more affluent countries where the cost of producing the book—including paying writers—is recovered. It’s linked to the first sale doctrine that says that once sold, the copyright holders lose any ability to profit from later sales.

The end result of permitting is likely to be bad. All the publishers of medical and other expensive textbooks need to do is sell their older editions editions overseas, perhaps clearing out their excess inventory. If those editions differ enough, medical students in affluent countries won’t buy them. Students in those poor countries will still be able to buy textbooks cheaply, but they won’t be as up-to-date.

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Sorting out when the loser pays the winner’s legal fees is a different issue. My own dispute with the Tolkien estate illustrates that.

On one hand, no court has ever ruled if a day-by-day chronology of a complex fictional work was fair use and also the Second Circuit had recently (1998) severely restricted fair use for fictional works.

On the other hand, in some five years no other federal circuit had accepted those fair-use restricting ruling and some had ruled to the contrary. Also law journal articles universally condemned the ruling. And for the chronology-fair use question, I made a good enough case, the judge dismissed the estate’s lawsuit “with prejudice,” meaning they never really had a case.

You could go either way on mine. In other disputes, the copyright holder is often bullying, hoping the legal costs of a defense will cause writers and publishers to give up even though they are in the right. In those cases, the suing party should not only lose but pay the other side’s legal fees. The same is true for clear-cut copyright violations. Making the loser pay means the winner and innocent party isn’t punished by his high legal fees.

For those who’re interested, I rewrote my legal argument for fair use as the last chapter of Untangling Tolkien. It’s also an interesting look at how few chronology clues Tolkien gives in The Lord of the Rings. That’s part of the book’s magic.

Fan fiction is another legal area entirely, particularly when there’s no commercial intent.